Perspective on cases

• Deep problem with standing doctrine is the difficulty of discerning what constitutes injury. As Easterbrook noted on 105, “bystanders” may have vital interests in whether the police are doing their jobs or not. Because we all have real interests in living in a certain kind of world, the standing question tends to get tied up with the underlying question of the merits of P’s claim.

• Example: I am outraged because I know that, in a house down the street, A is showing a pornographic movie to B, which B is watching with avid interest. Do I have a right to complain, or am I a mere meddlesome busybody? It depends.

• If B is my seven year old daughter, then my interest seems more cognizable than if

• B is an adult married to A.

• Criticism of standing doctrine:

• Critics argue that the doctrine’s application is wholly dependent on how the court chooses to characterize P’s injury, and there is no principled constraint on court’s choice. [Circularity: to evaluate whether jurisdiction exists, court must examine merits of actual claim.]

• Second, related criticism is that there is no principle that can determine what is a sufficient likelihood of solution to justify standing. Nor, even if the court knew how much likelihood was enough, would it have any basis for determining likelihood (other than guessing), since courts must make these decisions on the pleadings, before the trial, and therefore they have no evidence on which to base their determinations.

• Standard C/A:

1. Standing is an Article III requirement, and courts just need to do the best they can.

2. AK: is that a necessary reading of Article III? Cases here seem to impose standard that is more strict than requirements from plain language of Article 3. This is because of SC’s conception of judiciary’s role: courts must address constitutional issues and violations of law only where specific people are injured.

Political question doctrine

• Some big constitutional questions never get to court (e.g. secession). Should SCt ever refuse to decide a political question that is properly presented to it because it is not SCt’s role to decide such constitutional questions? Political question doctrine is not frequently invoked; but do be aware that cases come up.

Baker V. Carr - Apportionment of the Tennessee Assembly

• Brennan 1962. Background. Classic description of political question doctrine. This case set forth the modern SCt’s approach to political questions. SCt held that the constitutionality of legislative apportionment schemes is not a political question. Thus, SCt evaluated Tennessee’s apportionment scheme for electing representatives, thereby paving the way for the SCt’s “one person, one vote” ruling.

• SCt announced a series of factors, at least one of which must be present in order to make an issue a non-justiciable political question. Each of these factors relates in some way to the separation of powers. [Realize that the black letter law here is mushy here, so we examine other cases].

• Contrast these factors with Marshall in Marbury, who thought that political questions were those about which USC simply had nothing to say (25).

• In Baker, it is not clear where the limits are. These are not bright-line factors. Consider question whether 27^th amendment is part of USC.

• Factors:

• Commitment to another branch. A “textually demonstrable constitutional commitment of the issue to a coordinate political department” (e.g. to Congress or to the President).

• Lack of standards. A “lack of judicially discoverable and manageable standards for resolving” the issue.

• Unsuitable policy determination. The “impossibility of deciding [the issue] without an initial policy determination of a kind clearly for non-judicial discretion.”

• Lack of respect for other branches. The impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of government.

• Political decision already made. An “unusual need for unquestioning adherence to a political decision already made.”

• Multiple pronouncements. The potential for “embarrassment from multifarious pronouncements by various departments on one question.” (Similar to Hunter v. Martin’s Lessee: once one department has made decision, there must be uniformity).

• Facts. Challenge was to the apportionment of the Tennessee Assembly, which had not been reapportioned in 60 years, despite a state constitutional requirement of representation based on population, and despite significant changes in population over the years.

• Holding. SCt concluded that the claim, which was the malapportionment violated the Equal Protection Clause, did not present a political question.

• Brennan simultaneously (1) made judicial supremacy claim, but (2) said there are certain questions that SCt will not decide.

• Rationale. SCt reasoned that not all cases involving “politics” present non-justiciable “political questions.” The SCt listed a catalogue of political factors, at least one of which had always been present in true political-question cases. The equal protection claim here did not involve any of these factors. For instance, the issue had not been “textually committed by the USC to another branch of government;” nor were “judicially discoverable and manageable standards for resolving it” lacking.

• Not Guaranty Clause claim. SCt rejected claim that issue here was a non-justiciable political question under the republican form of government (or “guaranty”) clause [Article IV, §4]. (SCt conceded that guaranty clause claim would not be justiciable). What makes Guaranty Clause claims non-justiciable political questions is that they involve the relations between the judiciary and the other branches of the federal government, not the relations between the judiciary and the states (the relation at issue here).

• Dissent - Frankfurter. Argued that the claim here was really “a Guaranty Clause claim masquerading under a different label” and contended that the Ps’ claims that their votes had been “diluted” by malapportionment could not be adjudicated unless the SCt “first defined a standard of reference as to what a vote should be worth.” To do that, the SCt would have to “choose among competing bases of representation – ultimately, really among competing theories of political philosophy . . .” This was not a suitable judicial function.